Judge seems skeptical of legal justification for Pentagon's punishment
of Sen. Mark Kelly
[February 04, 2026]
By MICHAEL KUNZELMAN
WASHINGTON (AP) — A federal judge said Tuesday that he knows of no U.S.
Supreme Court precedent to justify the Pentagon's censuring of a sitting
U.S. senator who joined a videotaped plea for troops to resist unlawful
orders from the Trump administration.
Sen. Mark Kelly had a front-row seat in a courtroom as his attorneys
urged U.S. District Judge Richard Leon to block the Pentagon from
punishing the Arizona Democrat, a retired U.S. Navy pilot. Leon didn't
immediately rule from the bench on Kelly's claims that Pentagon
officials violated his First Amendment free speech rights.
But the judge appeared to be skeptical of key arguments that a
government attorney made in defense of Kelly's Jan. 5 censure from
Defense Secretary Pete Hegseth.
“You're asking me to do something the Supreme Court has never done,” the
judge told Justice Department attorney John Bailey. “Isn't that a bit of
a stretch?”
Bailey argued that Congress decided that retired military service
members are subject to the same Uniform Code of Military Justice that
applies to active-duty troops.
“Retirees are part of the armed forces,” Bailey said. “They are not
separated from the services.”
Benjamin Mizer, one of Kelly's lawyers, said they aren't aware of any
ruling to support the notion that military retirees have “diminished
speech rights.” And he argued that the First Amendment clearly protects
Kelly's speech in this case.
“And any other approach would be to make new law,” Mizer added.
Leon, who was nominated to the bench by Republican President George W.
Bush, said the Pentagon's actions against Kelly could have a chilling
effect on “many, many other retirees who wish to voice their opinion.”
The judge said he hopes to issue a ruling by next Wednesday. Kelly shook
hands with two government attorneys after the hearing.
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Sen. Mark Kelly, D-Ariz.,speaks to reporters outside of federal
court in Washington, Tuesday, Feb. 3, 2026. (AP Photo/Mark
Schiefelbein)
In November, Kelly and five other Democratic lawmakers appeared on a
video in which they urged troops to uphold the Constitution and not
to follow unlawful military directives from the Trump
administration.
Republican President Donald Trump accused the lawmakers of sedition
“punishable by DEATH” in a social media post days later. Hegseth
said Kelly’s censure was “a necessary process step” to proceedings
that could result in a demotion from the senator’s retired rank of
captain and subsequent reduction in retirement pay.
The 90-second video was first posted on a social media account
belonging to Sen. Elissa Slotkin. Reps. Jason Crow, Chris Deluzio,
Maggie Goodlander and Chrissy Houlahan also appeared in the video.
All of the participants are veterans of the armed services or
intelligence communities.
The Pentagon began investigating Kelly in late November, citing a
federal law that allows retired service members to be recalled to
active duty on orders of the defense secretary for possible
court-martial or other punishment.
Hegseth has said Kelly was the only one of the six lawmakers to be
investigated because he is the only one who formally retired from
the military and still falls under the Pentagon’s jurisdiction.
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